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Friday, July 20, 2018

By Chuck Lindell, Austin American-Statesman

AUSTIN, Texas — The U.S. Supreme Court on Tuesday barred Texas from enforcing an abortion regulation that had left only seven clinics operating in the state.

The late-evening ruling means recently closed abortion clinics can reopen, at least temporarily, as a divided Supreme Court blocked Texas from requiring abortion facilities to meet the same standards as ambulatory surgical centers.

The on-again, off-again regulation was a key part of House Bill 2, passed in 2013 after two contentious special legislative sessions that featured late-night protests and a filibuster by Democratic Sen. Wendy Davis, that launched her gubernatorial campaign against Republican Greg Abbott, the attorney general who is defending HB 2 in court.

“The U.S. Supreme Court gave Texas women a tremendous victory today,” said Nancy Northup, president of the Center for Reproductive Rights. “Tomorrow, 13 clinics across the state will be allowed to reopen and provide women with safe and legal abortion care in their own communities.”

Previously, however, abortion providers have testified that restaffing and reopening clinics can be difficult, and it was unclear late Tuesday how many — and how rapidly — closed facilities would be returned to operation.

The surgical-center requirement, set to take effect Sept. 1, was ruled unconstitutional on Aug. 29 by U.S. District Judge Lee Yeakel, who said the regulation was designed to limit access to abortion by shutting down clinics, not to improve women’s health as legislators backing it had argued.

If allowed to be enforced, Yeakel said, the rule would leave no abortion clinics operating in the state south and west of San Antonio — resulting in 1.3 million reproductive-age women living more than 100 miles from an abortion provider, with about 750,000 women more than 200 miles from one.

Abbott filed a two-step appeal to the 5th U.S. Circuit Court of Appeals seeking to overturn Yeakel’s ruling and to allow Texas to enforce the regulation while the appeal continues.

On Oct. 2, the appeals court agreed to let Texas enforce the regulation, forcing all clinics to close except for seven that were already licensed as ambulatory surgical centers in Austin, San Antonio, Dallas, Fort Worth and Houston. An eighth surgical center is under construction in San Antonio.

The appeals court still must rule on the constitutionality of the surgical center regulation.

On Tuesday, responding to an emergency motion from abortion providers, the U.S. Supreme Court reinstated Yeakel’s injunction banning Texas from enforcing the regulation.

The Supreme Court’s two-paragraph ruling didn’t elaborate on the court’s reasons, though the order noted that Justices Antonin Scalia, Samuel Alito and Clarence Thomas would have allowed Texas to enforce the provision.

Abortion opponents were disappointed in the ruling but expressed confidence that the 5th Circuit would eventually uphold the surgical-center regulation.

When the 5th Circuit issued its 2-1 ruling allowing Texas to enforce the regulation, the majority noted that Texas was likely to succeed in its defense of HB 2, said Emily Horne, legislative associate for Texas Right to Life.

“We are obviously stunned by the decision,” Horne said of Tuesday’s action. “But the Supreme Court didn’t address any of the (law’s) merits, and the 5th Circuit did, so that gives us a lot of hope.”

Davis praised Tuesday’s ruling.

“The court recognized that these deeply personal decisions should be made by a woman with the guidance of her family and her doctor,” Davis said. “While politicians like Greg Abbott support making abortion illegal even in cases of rape and incest, I’m thankful that women can continue to make their own personal decisions.”

Abbott’s campaign referred questions to the attorney general’s office, which issued a statement vowing to continue defending HB 2, just as the agency defends “all state laws when they are challenged in court.”

Tuesday’s Supreme Court ruling also barred Texas from enforcing a second HB 2 provision — requiring abortion doctors to gain admitting privileges at a nearby hospital — as applied to clinics in El Paso and McAllen.

Hospitals had refused to grant privileges to doctors from the two clinics, prompting Yeakel to rule that the regulation imposed an improper burden on access to abortion by requiring women in West Texas and the Rio Grande Valley to travel hundreds of miles to the nearest Texas abortion facility.

In a previous legal challenge to HB 2, a three-judge 5th Circuit panel upheld the admitting-privileges requirement and a separate provision regulating abortion-inducing drugs.

Last week, the full appeals court declined to review that decision in a 12-3 ruling, and abortion providers are expected to ask the Supreme Court to toss out the admitting-privileges requirement for all clinics.

HB 2 also banned abortions after 20 weeks gestation. That provision wasn’t challenged in court and went into effect Sept. 1, 2013.

Action will return to the 5th U.S. Circuit Court of Appeals, where lawyers for Texas will try to overturn a lower-court ruling that found the surgical-center regulation to be unconstitutional. Texas cannot enforce the regulation while the appeal proceeds.

AFP Photo/Mark Wilson